Opinion
No. CV 06-4001114
February 24, 2010
MEMORANDUM OF DECISION
On June 13, 2006, the petitioner filed a writ of habeas corpus in which he claims that he was denied the effective assistance of his trial counsel, Jeffrey Beck (Count One) and Robert Photos (Count Two), in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article First, § 8 of the Connecticut Constitution in the following ways: counsel failed to adequately investigate the facts involving petitioner's arrest and the facts regarding petitioner's statement to the Bridgeport police; counsel failed to file a Motion to Suppress petitioner's statement to the Bridgeport police; counsel failed to provide a copy of all police reports and witness statements to petitioner in Spanish or to provide a translator to help petitioner review those documents; counsel failed to investigate and/or seek to compel the appearance of exculpatory witnesses; counsel failed to adequately cross-examine the State's witnesses; counsel failed to impeach the testimony of the State's witnesses; counsel failed to preserve issues for appeal; counsel failed to properly explain the consequences to petitioner if he went to trial and lost and the range of sentences petitioner could receive if he were convicted after trial; counsel failed to fully explain the process of preserving the right to appeal; counsel failed to review the Presentence Investigation for accuracy and correct any inaccuracies trial counsel failed to present witnesses at the time of sentencing. In Count Three petitioner claims that his due process rights were violated in that he was improperly convicted of Kidnapping in the first degree when the Kidnapping was incident to the crimes of Sexual Assault in the first degree and Robbery in the first degree. He claims that his convictions in criminal case CR05-0206235 should be vacated.
The matter came to trial on July 29, 2009. The court heard testimony from petitioner, his stepfather, Efrain Perez, his brother, Luis Estrada, his mother, Aida Perez, his girlfriend, Carmen Estrada, and his trial counsel, Jeffrey Beck. The parties submitted post-trial briefs, with the petitioner's brief filed on October 5, 2009, and the respondent's brief filed on October 27, 2009. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a case in the judicial district of Fairfield with docket number FBT CR05-0206235 and charged by a Substitute Information with five counts of robbery in the first degree in violation of Conn. Gen. Stat. § 53a-134(a)(4) and one count each of conspiracy to commit robbery in the first degree in violation of Conn. Gen. Stat. § 53a-134(a)(4) and § 53a-48, burglary in the first degree in violation of Conn. Gen. Stat. § 53a-101(a)(1), kidnapping in the first degree in violation of Conn. Gen. Stat. § 53a-92(a)(2)(A), and sexual assault in the first degree in violation of Conn. Gen. Stat. § 53a-70(a)(1).
2. As stated by the Appellate Court, the jury could reasonably have found the following facts to be true regarding the underlying offenses: "At approximately 1:30 a.m. on November 5, 2004, the defendant, his brother, Benjamin Bosque, and Roberto Figueroa went to a Bridgeport apartment, a residence shared by three males and a female, all of whom were college students. The defendant and his accomplices forcibly gained entry to the apartment after ringing the doorbell. The defendant and his brother wore masks and brandished BB guns. Initially, three of the residents were at the apartment along with another male visitor. Thereafter, the fourth resident arrived home from work. At gunpoint, the intruders verbally disparaged, threatened and physically assaulted the occupants of the apartment and forced them into one room. The intruders ransacked the apartment for valuables, taking items such as home electronics, jewelry, mobile phones, cash and automatic teller machine cards. The intruders also forced the victims to reveal their personal identification numbers. During the invasion, the defendant participated in a sexual assault of the female victim. Following their departure from the apartment, the defendant and his accomplices took the stolen items to the home of the defendant's mother and proceeded to a bank where they withdrew money from the victims' bank accounts." State v. Bosque, 106 Conn.App. 452, 454, 942 A.2d 1036, cert. denied, 287 Conn. 913, 950 A.2d 1288 (2008).
The petitioner's brother, Benjamin Bosque, also was convicted after a trial, also before Judge Hauser, to a separate jury. The facts as found by that other jury are summarized in State v. Bosque, 106 Conn.App. 783, 784-85, 943 A.2d 1115, cert. denied, 287 Conn. 913 (2008). Those facts were as follows:
In the early morning of November 5, 2004, the defendant; his brother, Fernando Bosque; and Roberto Figueroa invaded a Bridgeport apartment, a residence shared by four college students. A friend of one of the students was visiting as well. The defendant rang the doorbell, and when one of the students answered the door, the defendant put a gun to his head and pushed him inside. Fernando Bosque and Figueroa followed the defendant into the apartment. At gunpoint, the defendant and his accomplices forced the students into one room, threatening and physically assaulting them. The defendant and his accomplices ransacked the apartment for valuables, taking items such as home electronics, jewelry, cellular telephones, cash and automated teller machine cards. The intruders also forced the students to reveal the personal identification numbers associated with their automated teller machine cards. During the home invasion, the defendant sexually assaulted one of the students. After leaving the apartment, the defendant and his accomplices took the stolen items to the home of the defendant's mother and proceeded to a bank where they withdrew money from the students' bank accounts.
The defendant eventually was arrested and charged with several offenses. He was tried before the jury and found guilty. The defendant was sentenced to a term of sixty years imprisonment, execution suspended after forty years, and thirty-five years of probation.
3. After a jury trial before the Hon. Lawrence Hauser, a verdict of guilty was returned on all counts. On March 26, 2006, the Court (Hauser, J.) sentenced the petitioner to a total effective sentence of seventy years suspended after fifty years, seven of which are non-suspendable, with thirty-five years probation.
Petitioner's Exh. 5, pp. 357-63.
Petitioner's Exh. 6, pp. 19-23.
4. The petitioner was represented at the underlying criminal trial by Attorneys H. Jeffrey Beck and Robert A. Photos. Mr. Beck, at the time of trial in 2005, had tried approximately fifty to sixty criminal cases with charges ranging from murder, capital felony, robbery, rape, and arson.
5. On appeal, the petitioner's conviction was upheld. State v. Bosque, supra, 106 Conn.App. 326.
6. Jeffrey Beck, petitioner's trial counsel, testified at the habeas trial that he began to represent petitioner after his case had been transferred to Part A and continued to represent him through his trial. Although he did not recall specifically how many times he had met with petitioner prior to trial, he did say he spoke with him several times before trial. These meetings would have included discussions about victims' statements, statements of other witnesses and the petitioner's own statement. In the course of those discussions Attorney Beck was neither aware of any problem petitioner might have had with the English language, nor did petitioner ever ask for an interpreter. He said he never had any problem communicating with petitioner. In fact, Mr. Beck stated that petitioner was aware of the details in all of the documents discussed and he fully participated in the discussion of all the material.
7. Despite petitioner's contention that he does not read or write English, he indicated to the police in his statement of March 24, 2005, that he did so, and his educational history in his Pre-Sentence Investigation reveals that he is of average intelligence and he is currently participating in GED classes offered by the Department of Correction.
Respondent's Exh. A, p. 1.
Respondent's Exh. C., p. 5.
8. Attorney Beck also testified that he discussed a plea offer of fifteen years to all charges with petitioner who would not accept it because he felt it was too much time. Mr. Beck made it clear to petitioner that he would receive a considerably longer sentence if he should go to trial. After discussing the strength of the state's case with petitioner, he recommended that he accept the state's offer. However, petitioner refused to do so.
9. Mr. Beck also stated that his defense was predicated on the facts told to him by petitioner and memorialized in his statement to the police, i.e., petitioner did not participate in any manner in the events about which he is charged. His claim is that Robert Figueroa perpetrated the crime with other individuals and when petitioner later entered the residence of the victims, he was merely an observer. Because Mr. Beck did not want the petitioner to testify for tactical reasons, he did not move to suppress the statement so that the document would speak for petitioner without risk of cross-examination.
Respondent's Exh. A, pp. 1-2.
10. The Court will discuss additional facts as needed.
DISCUSSION
According to the amended petition, Attorney Beck performed deficiently in myriad ways. To wit: failure to undertake an adequate investigation into the facts and circumstances regarding the petitioner's arrest; failure to undertake an adequate investigation into the facts and circumstances regarding the petitioner's statement to the Bridgeport Police; failure to file a motion to suppress the statement to the police; failure to provide the petitioner with copies of all police reports and witness statements translated into Spanish or to afford the petitioner the opportunity to review all police reports and witness statements with the assistance of a translator; failure to investigate and/or seek to compel the appearance at trial of exculpatory witnesses; failure to adequately cross-examine state's witnesses; failure to impeach the testimony of state's witnesses; failure to preserve issues for appeal; failure to fully and properly explain to the petitioner the likely outcome of the case if it went to trial and the range of sentences the petitioner could receive if he were convicted after trial; failure to fully and properly explain to the petitioner the process of preserving the right to appeal and/or appealing any conviction if the petitioner had entered a guilty plea; failure to review the Pre-Sentence Investigation Report (PSI) to ensure that it was accurate; and failure to present witnesses who were present and prepared to testify on behalf of the petitioner at the time of his sentencing.
These allegations in count one, which are directed against Attorney Beck, are also asserted against Attorney Photos in count two. While Attorney Beck testified at the habeas corpus proceeding, Attorney Photos did not. Simply put, there is no evidence in support of the allegations in count two as they pertain to Attorney Photos and that he somehow performed deficiently. The court finds, therefore, that the claims in count two are wholly unsupported, without merit, and deemed abandoned.
Turning to the allegations in count one that Attorney Beck rendered deficient performance, the court makes the following additional findings, both general and specific. At the time of the habeas corpus trial, several years after representing the petitioner, Attorney Beck was unable to recall many of the specifics he was questioned about. Attorney Beck on numerous occasions testified that it was his general practice to do certain things in the course of his representation of criminal defendants. From this testimony, the court cannot distill material facts that somehow advance the petitioner's claims.
Furthermore, the court must comment about the petitioner's credibility. The court finds not credible the petitioner's testimony that he, due to his purported limited understanding of English, thought he was signing a promise to appear when, in fact, he signed his statement given to the police. The statement spans five pages and is best described as the petitioner's unsuccessful attempt to minimize his role in the crimes. The petitioner's statement begins by describing his own brother, a co-defendant, as a Hispanic male he merely knows as "BeBo." The petitioner's brother is named Benjamin Bosque — BeBo. The statement goes on to describe the crimes as perpetrated by two individuals, Roberto Figueroa and Anthony Rivera, other than the Bosque brothers.
The clearest indication that the petitioner's statement was a shameless attempt to minimize his own role in the terrifying crimes is the fact that the petitioner correctly identified Roberto Figueroa as the individual wearing a "hoodie." The victims described and distinguished between the three perpetrators by referring to their headgear: two were masked, with one of the masked men wearing a jacket with logos; the third had on a hood, rendering his face visible. According to the petitioner's own statement, Roberto Figueroa was the unmasked individual with the hood. The petitioner credits himself with helping the female victim after a vicious sexual assault. However, the female victim's testimony during the criminal trial identifies the hooded individual as the one who helped her cover herself after the two masked men sexually assaulted her. According to the female victim's testimony, the hooded individual did not sexually assault her. The petitioner's statement, however, identifies Roberto Figueroa as sexually assaulting the female.
Thus, the petitioner's statement attempted to shield his brother, sought to minimize or negate his own involvement in the crimes, and blamed others for the heinous and brutal offenses. The petitioner now attempts to explain away this failed attempt to mislead the police investigators by indicating to this court that he thought he was signing a promise to appear. The court finds the petitioner to be entirely not credible, in particular the testimony pertaining to the statement and his professed inability to understand English.
"For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different Furthermore, `[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.' (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008)." (Internal citation omitted.) Francis D. v. Commissioner of Correction, 118 Conn.App. 350, 353 (2009), cert. denied, 294 Conn. 930 (2010).
Even if this court were to assume the petitioner has proven the dozen or so ways in which Attorney Beck performed deficiently, which he has not, the petitioner here has in no way affirmatively proven the required prejudice. The court's confidence in the outcome of the criminal proceedings has not been undermined in any way, nor has the petitioner somehow shown that some fundamental unfairness has been done. Accordingly, the claim in count one is denied.
In the third and final count of the amended petition, the petitioner alleges that his due process rights were violated in that he was charged with, and subsequently convicted of, kidnapping in the first degree, in violation of General Statutes § 53a-92(a)(2)(A), incident to the crimes of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1), and robbery in the first degree, in violation of General Statutes § 53a-134(a)(4). The petitioner cites to State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), and State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), in support of this due process claim.
The Supreme Court has very recently elaborated on its holdings in Salamon and its progeny. "In Salamon we examined more closely the contours of the intent to prevent a victim's liberation. Although we did not attempt to provide a comprehensive definition of that intent, we determined that the legislature meant to exclude from its scope an intent to confine or move a victim that is wholly incidental to the commission of another crime which, by its nature, necessitates some restraint of the victim. State v. Salamon, supra, 287 Conn. 542. We did not otherwise limit the definition of `intent to prevent . . . liberation'; General Statutes § 53a-91(2); or restrict the jury's role in determining whether it has been proven. Indeed, we emphasized that the holding in Salamon was not a complete refutation of the principles established by our prior kidnapping jurisprudence, specifically, that no minimum period of confinement or degree of movement is required to establish kidnapping. State v. Salamon, supra, 546. We noted that `[w]hether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case' and that, `when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination [of whether the defendant intended to prevent the victim's liberation] must be made by the jury.' (Emphasis in original.) Id., 547-48. We reversed the defendant's kidnapping conviction and remanded the case for such a determination. Id., 549-50. Subsequent to our decision in Salamon, we heard two appeals that similarly challenged kidnapping convictions on the ground that the restraint at issue was brief and wholly incidental to the commission of another crime, which, in each case, was sexual assault. See State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, supra, 437, superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009). In deciding these cases, we determined that their facts implicated the new rule announced in Salamon and, therefore, required reversal of the defendants' kidnapping convictions. See State v. DeJesus, supra, 428; State v. Sanseverino, supra, 287 Conn. 625-26. We concluded further that the correct remedy was to remand each case for a new trial in which the jury properly would be instructed as to the rule of Salamon and the state would have the opportunity to present evidence and to argue that the restraint involved was not entirely incidental to the defendant's commission of sexual assault. State v. Sanseverino, supra, 291 Conn. 589-90; State v. DeJesus, supra, 438-39. We reasoned that double jeopardy concerns did not mandate acquittal when the evidence presented was sufficient to establish kidnapping under the standard applicable at the time of trial, but not under the standard newly articulated in Salamon, because any insufficiency in proof resulted only from the subsequent change in the law. State v. Sanseverino, supra, 291 Conn. 588; State v. DeJesus, supra, 436." State v. Winot, 294 Conn. 753, 762 n. 7 (2010).
The underlying facts in the instant habeas corpus may lend themselves to a claim premised on Salamon and its progeny. Here, the victim was moved at gunpoint from her bedroom to another room and then sexually assaulted in front of her roommates. The restraint at issue (i.e., forcible movement from bedroom to another room) was brief and potentially incidental to the commission of other crimes (i.e., sexual assault and/or robbery). The trial court did not instruct the jury in accordance with the Salamon rule. However, this does not entitle the petitioner to habeas corpus relief at this time.
Presently pending before the Supreme Court is the matter of Luurtsema v. Commissioner of Correction, docket number S.C. 18383, which is fully briefed and ready to be assigned for arguments. There, "[t]he petitioner . . . brought [a] habeas action, challenging the legality of his sentence for kidnapping in light of Salamon and State v. Sanseverino, [ supra], in which the Supreme Court, applying Salamon, concluded that the defendant was entitled to reversal of his kidnapping conviction. The habeas court [in Luurtsema] reserved the following questions for the Supreme Court's review: (1) Do State v. Salamon and State v. Sanseverino apply in habeas corpus proceedings? (2) Do State v. Salamon and State v. Sanseverino apply in the petitioner's habeas corpus case? Since the habeas court's reservation, the Supreme Court has overruled that portion of Sanseverino directing that a judgment of acquittal be rendered on the kidnapping charge, ruling instead that, when a defendant is entitled to reversal of a kidnapping conviction because the jury was not instructed in accordance with Salamon, the appropriate remedy is a remand of the case for a new trial on that charge." Ct. Law Journal (Aug. 11, 2009), at pgs. 6B-C.
Given that the first and primary issue in Luurtsema v. Commissioner of Correction is whether or not Salamon and Sanseverino even apply in habeas corpus proceedings, this court will deny the claim in count three without prejudice. Should the Supreme Court resolve that question in the affirmative, then the petitioner may raise a challenge to his kidnapping conviction, premised on Salamon and Sanseverino, and seek a determination of whether those cases apply to his convictions. If the Supreme Court concludes that Salamon and Sanseverino do not apply to habeas corpus proceedings, then the petitioner thereby is precluded from challenging his kidnapping conviction on those bases.
For the forgoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.
It is so ordered.